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2024 DIGILAW 186 (HP)

Ram Saran v. State of Himachal Pradesh

2024-03-20

AJAY MOHAN GOEL

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JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition, the petitioner has, inter-alia, prayed for the following reliefs: “(i) That the impugned order dated 28.2.2022 contained in Annexure P-7 may kindly be quashed and set-aside and respondents may kindly be directed to promote the petitioner against the post of Research Officer from the due date i.e. year 2015 with all consequential benefits. (ii) That the respondents may kindly be directed to consider the case of the petitioner for promotion against the post of Research Officer from Senior Assistant from reserve category i.e. SC category by implementing the reservation roster which has not been implanted since 1999, whereas in other category same has been implemented.” 2. The case of the petitioner is that he was appointed as a Clerk in the respondent-Department on 05.02.2000. Thereafter, he was promoted against the post Senior Assistant on 06.08.2010. The post of Senior Assistant is the feeder category post for promotion to the post of Research Officer. In terms of the Recruitment & Promotion Rules of the post of Research Officer appended with the petition as Annexure P-1, the post of Research Officer is a Class-III Gazetted selection post, which is to be filled in 100% by way of promotion, failing which by direct recruitment. By promotion, the same is to be filled in from amongst Technical Assistants of the Tribal Department having three years regular or ad-hoc service or both in the Grade of Statistical Assistants and Assistants having five year regular or ad-hoc service or both in the Grade, who have done their graduation from a recognized university with Economics/Mathematics and Commerce as one of the subjects. Though in terms of the Recruitment & Promotion Rules appended with the petition, the number of posts of Research Officer mentioned therein is one, but the Court stands apprised that subsequently the number of the posts was increased to three. 3. The contention of the petitioner is that he belongs to a Scheduled Caste Category. Because the cadre strength of the post of Research Officer is less than thirteen, therefore, the promotions were to be effected by applying the 13 Point Model Roster, introduced by the respondent-State vide notification dated 20.08.1988 and the 4th replacement point therein which falls to the share of Scheduled Caste category has erroneously filled in by promoting one Shri Jagdish Thakur. who belongs to the Unreserved Category and as a result thereof, grave injustice has been caused to the petitioner, as upon gaining eligibility for promotion to the post of Research Officer, till date, his candidature is being ignored on the ground that there is no vacancy as of now available to be filed in from amongst Scheduled Caste Category candidates. 4. Learned Senior Counsel for the petitioner has submitted that as it is not in dispute that the 4th replacement point which as per the 13 Point Model Reservation Roster belongs to the category of Scheduled Caste, was not filled by promotion of a person belonging to the Scheduled Caste Category, which act of the Department is arbitrary and in violation of the instructions issued in this regard by the respondent-State itself, as it has taken away a valuable right of consideration for promotion of the petitioner against said post, who belongs to the Scheduled Caste Category, which right of his, in terms of the law declared by Hon’ble Supreme Court in Ajit Singh-II vs. State of Punjab, (1997) 7 SCC 209, is a fundamental right. Accordingly, he has prayed that the present petition be allowed by holding the act of the respondent of promoting an Unreserved Category candidate to the post of Research Officer against the roster point of Scheduled category Caste to be bad in a law, with a further direction to the respondents to consider and promote the petitioner to the said post from the date when he gained eligibility. 5. Learned Deputy Advocate General has submitted that the case of the petitioner has no merit, for the reason that the 4th replacement vacancy was filled in as far back as in the month of February, 2010, when the petitioner was not even in the zone of consideration, as he was promoted to the post of Senior Assistant only in the month of August, 2010. He further submitted that no illegality was committed by the Departmental Promotion Committee (DPC) by promoting Shri Jagdish Thakur against the 4th replacement point, for the reason that when there were no incumbents available of the Scheduled Caste Category, then the DPC rightly considered and promoted the eligible candidate against the post in issue from unreserved category. He further submitted that no illegality was committed by the Departmental Promotion Committee (DPC) by promoting Shri Jagdish Thakur against the 4th replacement point, for the reason that when there were no incumbents available of the Scheduled Caste Category, then the DPC rightly considered and promoted the eligible candidate against the post in issue from unreserved category. Learned Deputy Advocate General also intimated the Court that even otherwise in terms of the seniority list of eligible candidates pertaining to the years 2017 and 2019, which are on record, there were other incumbents belonging to the Scheduled Caste Category senior to the petitioner and therefore also, in light of this fact, the petitioner is not entitled for the relief being prayed for. He also stated that all these facts otherwise also stand dealt with by the authority concerned in terms of the directions passed by this Court in the earlier Writ Petition filed by the petitioner, i.e. CWP No. 337 of 2022 titled as Ram Saran vs. State of Himachal Pradesh and Another, decided on 11.01.2022. Accordingly, he prayed that the present petition being devoid of any merit be dismissed. 6. I have heard learned Senior Counsel for the petitioner as also the learned Deputy Advocate General and carefully gone through the pleadings on record. 7. On the direction of the Court, the proceedings of the DPC in which Shri Jagdish Thakur was promoted against the post of Research Officer have been produced for the perusal of the Court, which stand perused. 8. After the adjudication by Hon’ble Supreme Court of India in R.K. Sabharwal and Others vs. State of Punjab and Others, (1995) 2 SCC 745 , the Department of Personnel, Government of Himachal Pradesh issued instructions dated 20.08.1998, which are on record, on the subject “Reservation roster-Post based/Implementation of Supreme Court Judgment in the case of R.K. Sabharwal vs. State of Punjab and enhancement of reservation in services for Other Backward Classes.” Alongwith these instructions, there is an appendix to Annexure-D, which is the Model Roster for promotion of cadre strength upto thirteen posts. In terms of the Note appended with this Annexure, it is stated therein that Cadre of two to thirteen posts, the roster is to be read with entry one under Column “Cadre Strength” till the last post and then horizontally till the last entry in the horizontal row, that is, like letter “L.” All the posts of the cadre are to be earmarked for the category shown under Column “Initial Appointment.” While initially filling up will be by the earmark category, the replacement against any of the post in the cadre, shall be by rotation as shown horizontally against last post of the cadre. In other words, while applying this 13 Point Roster, the promotions are to be effected strictly inconsonance with the roster in hand and by offering a vacancy to the category which stands reflected in this 13 Point Roster irrespective of the fact as to how that vacancy has become available. This is slightly different from the roster that is being followed for the posts having cadre strength of more than thirteen, wherein the principle is that once the roster stands exhausted, the post has to be filled in from the category, which vacates the post. 9. Applying the above principles to the present case, one finds that a register is maintained by the Department to give effect to the Roster for renovation of SC/ST/OBC etc. on promotion to the post of Research Officer, from the post of ARO/Stasticical Assistant/Senior Assistant and the same has also been placed on record by the parties. Perusal thereof demonstrates that the first, second and third posts were filled by promoting Shri Mela Ram Sangroli, Jai Pal Singh and Santosh Katoch by reflecting the said posts to be belonging to Un-reserved Category. Similarly, the first, second and third replacement posts which have been mentioned in the Register at Point Nos. 4, 5 and 6 have been exhausted by promoting against them, one Shri Munshi Ram, Shri Suresh Kumar and Shri Bhim Sen Thakur. Now, these posts have also been reflected as belonging to Unreserved Category. Similarly, the first, second and third replacement posts which have been mentioned in the Register at Point Nos. 4, 5 and 6 have been exhausted by promoting against them, one Shri Munshi Ram, Shri Suresh Kumar and Shri Bhim Sen Thakur. Now, these posts have also been reflected as belonging to Unreserved Category. It is relevant to point out that Shri Jai Pal Singh and Shri Munshi Ram who were promoted against unreserved posts belonged to Scheduled Tribe, but then it is settled law that a candidate belonging to Scheduled Caste or Scheduled Tribe Categories can be promoted against an unreserved post, if he comes in the zone of consideration for promotion as per his own seniority. 10. Now, comes the Roster Point with which we are concerned, i.e. Roster Point No. 7. In terms of the register maintained by the Department, this Roster Point has been filled up by promoting one Shri Jagdish Thakur, who belongs to Unreserved Category. The proceedings of the DPC demonstrate that for some reason this particular post was construed by the DPC as a vacancy belonging to Unreserved Category, though in terms of the Roster Register maintained by the Department, admittedly, this was a replacement point post belonging to Scheduled Caste Category. Thereafter, the DPC went on to consider three eligible candidates who incidentally were all belonging to Unreserved Category and recommended the name of Shri Jagdish Thakur for promotion against the said post. 11. This Court is of the considered view that this was the stage where discrepancy crept in, as the wrong which was committed by the DPC while recommending the name of Shri Jagdish Thakur against this vacancy, was that the DPC erred in not appreciating that Shri Jagdish Thakur who belonged to Unreserved Category, could not have been recommended for promotion against the 4th replacement Roster Point, which belongs to Scheduled Caste Category and if none form Scheduled Caste Category was available for being promoted against this roster point, the said roster point was to be left untouched till a candidate gained eligibility to be promoted against the same and a candidate belonging to Unreserved Category ought to have been considered and promoted against next replacement post of that category. 12. 12. Incidently, in the course of hearing of the Writ Petition, the respondents have also not denied the fact that Shri Jagdish Thakur was indeed considered and promoted against a roster point meant for Scheduled Caste Category, but they urged that this was done because none from the Scheduled Caste Category was available. The Court again stresses that if none from the Scheduled Caste Category was available, then the only course available for the DPC was to have had left this particular replacement point as untouched and as and when next replacement point became available, a candidate belonging to Unreserved Category could have had been promoted against the same. 13. However, at this stage, this Court can also not lose sight of the fact that promotion of Shri Jagdish Thakur was effected as far back as in the year 2010 and today we are in the year 2024. Not only this, in terms of combined seniority list of eligible candidates which is on record pertaining to the years 2017 and 2019, it stands reflected that there were two candidates, namely, Shri Piar Singh and Shri Surjeet Singh, and were also belonging to Scheduled Caste Category but were senior to the petitioner, who gained eligibility for being considered for promotion to the post of Research Officer on 06.10.2015. 14. However, the Court has also been informed that as far as Shri Piar Singh is concerned, he superannuated from service on 30.09.2019 and Shri Surjeet Singh Kaundal was promoted against another promotional channel post of Superintendent in the year 2017 itself, meaning thereby that as of now, there is no candidate belonging to Scheduled Caste Category, who is eligible to be considered for promotion to the post of Research Officer except the petitioner. 15. Therefore, in these circumstances, without interfering with the recommendations of the DPC and also the promotion of the candidate belonging to Unreserved Category against 4th replacement post belonging to the Scheduled Caste Category, this Writ Petition is disposed of with the direction that now, the candidature of the petitioner be considered by way of fresh DPC for promotion against the post of Research Officer, against said 4th replacement point which actually belongs to the Scheduled Caste Category, but was erroneously filled by promoting General Category candidates and if found eligible, he be promoted to the said post. In order to avoid any complication, the Department shall be at liberty to create a supernumerary post so that either the promotion of the petitioner or that of Shri Jagdish Thakur can be adjusted against the same and the subsequent roster maintained by the Department also is not disturbed. Let the DPC being constituted to consider the promotion of the petitioner as expeditiously as possible and not later than eight weeks from today. Pending miscellaneous applications, if any also stand disposed of accordingly.